EXHIBIT 10.22
FEE AGREEMENT
This Fee Agreement (this "Agreement") is entered into as of the 25 day of
November, 2003, by and among Pinnacle Foods Holding Corporation, a Delaware
corporation (the "Company"), Crunch Holding Corp., a Delaware corporation
("Crunch Holding") and CDM Capital LLC, a Delaware limited liability company
("CDM").
WHEREAS, Crunch Acquisition Corp., a Delaware corporation ("Crunch
Acquisition"), Crunch Holding, a wholly-owned subsidiary of Crunch Equity
Holding, LLC, a Delaware limited liability company ("CEH"), and Pinnacle Foods
Holding Corporation, a Delaware corporation ("Pinnacle") and the Company entered
into an Agreement and Plan of Merger, dated as of August 8, 2003 (the "Pinnacle
Agreement"), pursuant to which on the date hereof Crunch Acquisition was merged
with and into the Company, with the Company surviving the merger as a
wholly-owned subsidiary of Crunch Holding (the "Initial Transaction");
WHEREAS, pursuant to the Agreement and Plan of Reorganization and Merger,
dated as of November 25, 2003, between Aurora Foods Inc. ("Aurora") and CEH (as
such agreement may be replaced, amended, waived, supplemented or otherwise
modified from time to time, the "Aurora Agreement"), the Company will be merged
with and into Aurora, with Aurora surviving the merger as a wholly-owned
subsidiary of Crunch Holding (the "Aurora Transaction");
WHEREAS, the Company desires to avail itself of the financial advisory and
corporate structuring expertise of CDM with respect to future proposals for
acquisitions and dispositions (whether by stock purchase or sale, asset purchase
or sale, merger or otherwise), tender offers, exchange offers, restructurings,
refinancings, issuances of debt or equity (whether in a private or public
offering) or other similar transactions directly or indirectly involving Crunch
Holding or the Company or any of their subsidiaries and any other person or
entity (each such transaction other than the Initial Transaction and the Aurora
Transaction, a "Subsequent Transaction" and collectively, the "Subsequent
Transactions");
WHEREAS, CDM is willing to provide the Company with such services, advice
and expertise on the terms and conditions contained in this Agreement; and
WHEREAS, certain capitalized terms used in this Agreement are defined in
Section 4 of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
SECTION 1. PAYMENT OF FEES TO CDM.
(a) Fees. In connection with any Subsequent Transaction (which
expressly excludes the Initial Transaction and the Aurora Transaction), the
Company shall pay to CDM (or its designee) a cash fee equal to 0.5% of the
Transaction Value of such Subsequent Transaction, payable concurrently with, and
upon, the closing of such Subsequent Transaction. If the closing of such
Subsequent Transaction does not occur, then no fees shall be payable to CDM
pursuant to this Agreement with respect to such Subsequent Transaction.
(b) Payment Method. Payments made pursuant to this Section 1 shall
be paid by wire transfer of immediately available federal funds to the account
specified on Exhibit A attached hereto, or to such other account(s) as CDM may
specify in writing to the Company.
SECTION 2. EXPENSES; INDEMNIFICATION.
(a) Expenses. The Company shall pay on demand (i) the reasonable
fees and expenses incurred by CDM and its Controlled Affiliates in any filing
with any governmental authority with respect to any Subsequent Transaction, or
in any other filing with any governmental authority with respect to the Company
or CEH that mentions CDM or any of its Controlled Affiliates, and (ii) all fees
and expenses incurred by CDM and its Controlled Affiliates or any one of them in
connection with this Agreement and a Subsequent Transaction (including fees and
expenses of counsel, accountants and other advisors), including but not limited
to the preparation, negotiation and execution of this Agreement, the performance
of services hereunder, or the transactions contemplated hereby.
(b) Indemnity and Liability. The Company shall indemnify, defend,
exonerate and hold CDM and each of its members, Controlled Affiliates,
directors, officers, fiduciaries, employees, attorneys and agents and each of
the partners, shareholders, directors, officers, fiduciaries, employees,
attorneys and agents of each of the foregoing (collectively, the "Indemnitees")
free and harmless from and against any and all actions, causes of action, suits,
losses, liabilities and damages, and expenses in connection therewith,
including, without limitation, reasonable attorneys' fees and disbursements
(collectively, the "Indemnified Liabilities"), incurred by the Indemnitees or
any of them as a result of, or arising out of, or relating to the execution,
delivery, performance, enforcement or existence of this Agreement (including,
without limitation, any indemnification obligation assumed or incurred by any
Indemnitee to or on behalf of CDM, or its accountants or other representatives,
agents or Controlled Affiliates) except for any such Indemnified Liability
arising on account of such Indemnitee's gross negligence or willful misconduct,
and if and to the extent that the foregoing undertaking may be unenforceable for
any reason, the Company shall make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law. None of the Indemnitees shall be liable to the Company or any of
its Affiliates for any act or omission suffered or taken by such Indemnitee that
does not constitute gross negligence or willful misconduct.
SECTION 3. AMENDMENTS AND WAIVERS. No amendment or waiver of any term,
provision or condition of this Agreement shall be effective, unless in writing
and executed by CDM and the Company. No waiver on any one occasion shall extend
to or effect or be construed as a waiver of any right or remedy on any future
occasion. No course of dealing of any person nor any delay or omission in
exercising any right or remedy shall constitute an amendment of this Agreement
or a waiver of any right or remedy of any party hereto.
SECTION 4. DEFINED TERMS.
(a) "Affiliate" means, with respect to any Person, any (i)
director, officer, limited or general partner, member or stockholder holding 5%
or more of the outstanding capital stock or other equity interests of such
Person, and (ii) other Person that, directly or indirectly,
through one or more intermediaries, controls, or is controlled by, or is under
common control with, such Person.
(b) "control" means, including, with correlative meaning, the
terms "controlling," "controlled by" and "under common control with", with
respect to any Person, the possession, directly or indirectly, of the power to
direct or cause the direction of the management, policies or investment
decisions of such Person, whether through the ownership of voting securities, by
contract or otherwise.
(c) "Controlled Affiliate" means, with respect to any Person, any
(i) director, officer, limited or general partner, member or stockholder holding
5% or more of the outstanding capital stock or other equity interests of such
Person, and (i) any other Person that, directly or indirectly, through one or
more intermediaries, is controlled by such Person.
(d) "Person" shall be construed in the broadest sense and means
and includes a natural person, a partnership, a corporation, an association, a
joint stock company, a limited liability company, a trust, a joint venture, an
unincorporated organization and any other entity and any federal, state,
municipal, foreign or other government, governmental department, commission,
board, bureau, agency or instrumentality, or any private or public court or
tribunal.
(e) "Transaction Value" means the total value of the Subsequent
Transaction as determined by the Board of Directors of the Company in good
faith, and will include the aggregate amount of the funds required to complete
the Subsequent Transaction (excluding any fees payable pursuant to Section 1(a)
hereof and including, without double counting, the amount of any indebtedness,
equity or similar items issued, assumed or remaining outstanding and the amount
of any working capital items or other assets retained by the seller in such
Subsequent Transaction).
SECTION 5. GOVERNING LAW; CONSENT TO JURISDICTION AND VENUE; WAIVER OF
JURY TRIAL.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to any
law or rule that would cause the laws of any jurisdiction other than the State
of New York to be applied.
(b) ANY ACTION OR PROCEEDING AGAINST THE PARTIES RELATING IN ANY
WAY TO THIS AGREEMENT MAY BE BROUGHT AND ENFORCED IN THE COURTS OF THE STATE OF
NEW YORK OR THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK, TO THE EXTENT SUBJECT MATTER JURISDICTION EXISTS THEREFOR, AND THE PARTIES
IRREVOCABLY SUBMIT TO THE JURISDICTION OF BOTH SUCH COURTS IN RESPECT OF ANY
SUCH ACTION OR PROCEEDING. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVE,S TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION THAT SUCH PARTY MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH ACTION OR PROCEEDING IN THE
COURTS OF THE STATE OF NEW YORK LOCATED IN NEW YORK COUNTY OR THE SOUTHERN
DISTRICT OF NEW YORK AND ANY
CLAIM THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN ANY INCONVENIENT FORUM. ANY JUDGMENT MAY BE ENTERED IN ANY COURT
HAVING JURISDICTION THEREOF.
(c) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS AGREEMENT.
SECTION 6. INDEPENDENT CONTRACTOR. The parties agree and understand that
CDM is and shall act as an independent contractor of the Company in the
performance of its duties hereunder. CDM is not, and in the performance of its
duties hereunder will not hold itself out as, an employee, agent or other
representative of the Company.
SECTION 7. ENTIRE AGREEMENT. This Agreement contains the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
prior agreements and understandings with respect to such subject matter. The
parties hereto represent and warrant that there are no other agreements or
understandings regarding any of the subject matter hereof other than as set
forth herein and covenant not to enter into any such agreements or
understandings after the date hereof except pursuant to an amendment,
modification or waiver of the provisions of this Agreement.
SECTION 8. NOTICES. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument delivered in person or sent by telecopy,
nationally-recognized overnight courier or first class registered or certified
mail, return receipt requested, postage prepaid, addressed to such party at the
address set forth below or such other address as may hereafter be designated in
writing by such party to the other parties:
If to the Company, to:
Pinnacle Foods Holding Corporation
Xxx Xxx Xxxxxxxxxx Xxxx
Xxxxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: General Counsel
Telecopier: (000) 000-0000
If to CDM, to:
CDM Capital LLC
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: C. Xxxx Xxxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq./Xxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All such notices, requests, consents and other communications shall be
deemed to have been delivered (a) in the case of personal delivery or delivery
by telecopy, on the date of such delivery, (b) in the case of dispatch by
nationally-recognized overnight courier, on the next business day following such
dispatch and (c) in the case of mailing, on the third business day after the
posting thereof.
SECTION 9. SEVERABILITY. It is the desire and intent of the parties to
this Agreement that the provisions of this Agreement be enforced to the fullest
extent permissible under the law and public policies applied in each
jurisdiction in which enforcement is sought. Accordingly, in the event that any
provision of this Agreement would be held in any jurisdiction to be invalid,
prohibited or unenforceable for any reason, such provision, as to such
jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction. Notwithstanding the foregoing, if such
provision could be more narrowly drawn so as not be invalid, prohibited or
unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so
narrowly drawn, without invalidating the remaining provisions of this Agreement
or affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 10. COUNTERPARTS. This Agreement may be executed in any number of
original or facsimile counterparts, and each such counterpart hereof shall be
deemed to be an original instrument, but all such counterparts together shall
constitute but one agreement.
SECTION 11. HEADINGS. All descriptive headings in this Agreement are
inserted for convenience only and shall be disregarded in construing or applying
any provision of this Agreement.
SECTION 12. PREVAILING PARTY. If any legal action or other proceedings is
brought for a breach of this Agreement, the prevailing party shall be entitled
to recover its reasonable attorneys' fees and other costs incurred in bringing
such action or proceeding, in addition to any other relief to which such party
may be entitled.
SECTION 13. ASSIGNMENT, ETC. Except as provided below, neither the Company
nor CDM shall have the right to assign this Agreement. CDM acknowledges that its
services under this Agreement are unique. Accordingly, any purported assignment
by CDM shall be void.
SECTION 14. AMENDMENTS AND WAIVERS. No amendment or waiver of any term,
provision or condition of this Agreement shall be effective, unless in writing
and executed by
CDM and the Company. No waiver on any one occasion shall extend to or effect or
be construed as a waiver of any right or remedy on any future occasion. No
course of dealing of any person nor any delay or omission in exercising any
right or remedy shall constitute an amendment of this Agreement or a waiver of
any right or remedy of any party hereto.
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this Fee Agreement on
the date first written above.
PINNACLE FOODS HOLDING
CORPORATION
By: /s/ M. XXXXXX XXXXX
-------------------------
Name: M. Xxxxxx Xxxxx
CRUNCH HOLDING CORP.
By: /s/ XXXXXXXX XXXXX
-------------------------
Name: Xxxxxxxx Xxxxx
IN WITNESS WHEREOF, the parties hereto have executed this Fee Agreement on
the date first written above.
CDM CAPITAL LLC
By: /s/ C. XXXX XXXXXXXXXXX
-------------------------
Name: C. Xxxx Xxxxxxxxxxx
EXHIBIT A
CDM Investor Group LLC
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: C. Xxxx Xxxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ABA #__________
Account Name: _____________
Account #____________
